R v Brougham

[2015] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROUGHAM

[2015] SASCFC 75

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)

20 May 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - PARTICULAR OFFENCES - MURDER

Prosecution application for permission to appeal against an acquittal.

The respondent was charged with the murder of the deceased and was tried by Judge alone. The deceased suffered serious injuries to her face and head and suffered multiple broken ribs resulting in a flail chest. The Judge found that the respondent assaulted the deceased which substantially contributed to her death, but that he did not have at the relevant time the specific intent to kill the deceased or cause her grievous bodily harm required for the offence of murder. The respondent was thus acquitted of murder and convicted of manslaughter.

Section 352(1)(ab)(i) Criminal Law Consolidation Act 1935 enables the Director of Public Prosecutions, with permission of the Court, to appeal against an acquittal on any ground if the trial was by Judge alone. The Director applied for permission to appeal against the acquittal of murder on grounds asserting that the Judge erred in his approach to the element of specific intent.

Held per Peek J, dismissing the application for permission to appeal (Gray and Nicholson JJ agreeing):

1.      The Court will have close regard to the principles of double jeopardy when considering whether to grant an application for permission to appeal against an acquittal. (at [9], [28]-[93])

2.      In the circumstances, it is not possible to infer that the Judge ignored the other injuries when reaching his decision as to specific intent. (at [121])

3.      The Judge clearly delineated his obligation to make findings and decisions on the basis of the whole of the evidence and correctly directed as to the different states of intention required to establish murder and unlawful and dangerous act manslaughter respectively. (at [131])

4.      It was open on the evidence for the Judge not to be satisfied that the required specific intent for murder was established. (at [131])

5.      The proposed appeal has no reasonable prospect of success and permission to appeal should be refused. (at [132])

Criminal Law Consolidation Act 1935 ss 350, 351, 351A(2)(c), 351B, 352(1)(ab), 352(1)(ab)(i), 353(1), 353(2a), referred to.
R v Snow (1915) 20 CLR 315; R v Wilkes (1948) 77 CLR 511; Vallance v The Queen (1961) 108 CLR 56; Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397; Thorogood v Warren (1979) 20 SASR 156; R v Tait (1979) 46 FLR 386; Davern v Messel (1984) 155 CLR 21; Cooke v Purcell (1988) 14 NSWLR 51; R v Benz (1989) 168 CLR 110; Malvaso v The Queen (1989) 168 CLR 227; Royall v The Queen (1990) 172 CLR 378; R v Kim (1993) 113 FLR 278; Weinel v Rojas (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994); Everett v The Queen (1994) 181 CLR 295; Police v Murphy (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996); Meyers v The Queen (1997) 71 ALJR 1488; Pearce v The Queen (1998) 194 CLR 610; R v Turner [2001] WASCA 344; R v Carroll (2002) 213 CLR 635; R v Court [2003] WASCA 308; Police v W, BC [2006] SASC 105; The Queen v JS (2007) 230 FLR 276; R v Walker [2008] 2 SCR 245; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; JMH v The Queen [2011] 3 SCR 197; Green v The Queen (2011) 244 CLR 462; The State of WA v Rayney (2013) 46 WAR 1; R v David 2014 ONSC 5049; R v McPartland and Polkinghorne (2014) 120 SASR 69, discussed.
Whittaker v The King (1928) 41 CLR 230; R v Lee (1950) 82 CLR 133; Peel v The Queen (1971) 125 CLR 447; Griffiths v The Queen (1977) 137 CLR 293; Brown v The Queen (1986) 160 CLR 171; Semple v Williams (1990) 156 LSJS 40; Owen v Zakelj (Unreported, Supreme Court of South Australia, Debelle J, 17 June 1991); Young v Gilmore (Unreported, Supreme Court of South Australia, Prior J, 20 December 1991); Cheatle v The Queen (1993) 177 CLR 541; R v Wingfield (1994) 176 LSJS 14; DPP (Commonwealth) v Sharon Lee Brown (1994) 72 A Crim R 527; Police v Carradine (1996) 66 SASR 584; Police v Cadd (1997) 69 SASR 150; Brownlee v The Queen (2001) 207 CLR 278; Ng v The Queen (2003) 217 CLR 521; Royal Society For The Prevention Of Cruelty To Animals (SA) Inc v O'Loughlan [2007] SASC 113; Police v Eiffe (2007) 98 SASR 79; Ferguson v Reid [2007] SASC 445; Police v Koutlakis [2008] SASC 194; The Queen v PL (2009) 261 ALR 365; Police v Jachmann [2009] SASC 392; The Queen v LK (2010) 241 CLR 177; R v Tennant [2010] SASCFC 2; R v Wait [2011] SASCFC 91; R v Cain [2011] SASCFC 135; R v Willingham [2012] SASCFC 29; Police v Smith [2012] SASC 114; R v Gee (2012) 113 SASR 372; R v Gardiner [2013] SASCFC 53; Munda v State of Western Australia (2013) 249 CLR 600, considered.

R v BROUGHAM
[2015] SASCFC 75

Court of Criminal Appeal:  Gray, Peek and Nicholson JJ

GRAY J.  

1. I consider that the proposed appeal has no reasonable prospect of success. I agree that the principles of double jeopardy are relevant to the Court’s consideration of an application for permission pursuant to section 352(1)(ab) of the Criminal Law Consolidation Act 1935 (SA). I do not wish to add to the reasons of Peek J.

2. I would refuse permission to appeal. 

3. PEEK J.   Prosecution application for permission to appeal against an acquittal.

   Introduction and summary of the judgment

4. Mr Brougham (the respondent) was tried by a Supreme Court Judge sitting alone, on the charge that he murdered Ms Dianne Rogan (the deceased).  On 17 December 2014, the Judge found him not guilty of murder but guilty of the very serious offence of unlawful and dangerous act manslaughter.  His Honour was satisfied that the respondent had deliberately inflicted serious injuries upon the deceased, and that he had caused her death, but was not satisfied beyond reasonable doubt that the necessary specific intent to constitute murder rather than manslaughter had been proven.  Subsequently, on 10 April 2015, the Judge sentenced the respondent to a sentence of 15 years imprisonment with a non-parole period of 12 years.  The prosecution has applied for permission to appeal against the acquittal of the charge of murder.

5. In R v McPartland and Polkinghorne, a recent decision of this Court dealing with a prosecution application to appeal against a sentence imposed by a Supreme Court Judge for manslaughter, this Court observed:[1]

   In South Australia, a particular Judge is entrusted with the heavy burden of sentencing for serious crimes such as the present.  We do not have a system whereby the determination of sentence by that Judge is the mere prelude to the same work being carried out all over again from the start by a further panel of three Judges upon the filing by the prosecution of a document containing the above assertion.  The prosecution is only granted permission to appeal against that sentence in exceptional circumstances.

   [1] (2014) 120 SASR 69, 77.

6. The Court went on to note the importance of the double jeopardy principles when considering prosecution applications for permission to appeal against sentence and to emphasise that this Court must take the approach required by the High Court in cases such as Everett v The Queen, where Brennan, Deane, Dawson and Gaudron JJ stated:[2]

   [A] court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.   (Emphasis added)

   [2] (1994) 181 CLR 295, 299.

7. The application of the double jeopardy principles is all the stronger in a case such as the present which concerns an application for permission to appeal against an acquittal rather than a sentence; at common law, citizens traditionally had a fundamental right to be spared the further jeopardy of an appeal from an acquittal after a trial in a superior court.  The basis of the double jeopardy principles was described thus by President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell:[3]

   It is to be noted that, at the heart of this principle, as so expounded, is not the avoidance of the risk of double punishment as such but the avoidance of vexation, the misuse of the great authority of the State and the potential oppression that may be involved in double trial and double risk of conviction.  The principle has a basis different in kind from the related rules which promote finality of litigation, such as res judicata and issue estoppel.  … The principle at stake in the development of the double jeopardy rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings.  It is based, ultimately, upon a perceived principle fundamental to civil rights.

   This much has been recognised in jurisdictions like our own which, unlike the United States, provide no constitutional guarantee against double jeopardy.  Thus in Cullen v The King [1949] SCR 658 at 668, long before the Charter, Rand J in the Canadian Supreme Court said:

   At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts.  It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy.

   [3] (1988) 14 NSWLR 51, 55-56.

8. It is, of course, understandable that the loved ones of a person who has been killed by the accused person will entirely focus their attention on the circumstances of the particular case rather than upon general legal principles that are to be consistently applied to cases across the legal spectrum.  In McPartland, the court was dealing with the manslaughter of a child, but the observations apply equally to the loss of a beloved adult:[4]

   The Court is well familiar with the fact that, particularly in the case of the loss of a beloved young child, the reaction of persons close to the child will likely be that the sentence imposed on those responsible for the death is “not enough”, no matter what that sentence happens to be.  This is entirely understandable and is perhaps related to the fact that nothing, including the longest sentence, can be enough to bring the child back to life.

   The members of the Court have read, and had close regard to, ten detailed victim impact statements and their annexures, as did the sentencing Judge.  They are undoubtedly the sincere outpourings of the grief of the authors.  It is difficult not to share that grief and to react against the respondents in an angry way.  It is no doubt cold comfort for the authors, and others close to the child, to be reminded that the Courts must not act in an angry way but in a measured, consistent way.

   The persons responsible for the death have pleaded guilty and have been sentenced to substantial, unsuspended prison terms which they commenced serving at the time of sentencing and continue to serve.  Those sentences can only be revisited by applying the law and not emotion.

   [4] (2014) 120 SASR 69, 80-81.

9. Looking at the broader perspective, a number of the judgments of the High Court refer to the double jeopardy principles in terms such as deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy.[5]Such statements are not mere incantations to be recited and as quickly discarded.  Although the statutory position is that the prosecution may now apply for permission to appeal against such a verdict in certain circumstances, this Court will have close regard to the double jeopardy principles when considering whether to grant such an application.  It remains the case that an acquittal by a superior court should, except in exceptional circumstances, be final.

   [5]    Malvaso v The Queen (1989) 168 CLR 227, 234; Everett v The Queen (1994) 181 CLR 295, 305; Munda v State of Western Australia (2013) 249 CLR 600, 628.

10. However, in the present case, if one entirely puts aside the double jeopardy principles and has full regard to the prosecution arguments, a detailed consideration of the judgment shows that no material error by his Honour occurred and therefore a prosecution appeal has no prospect of success.

11. It follows that in all of the circumstances, I would dismiss the application for permission to appeal.  My more detailed reasons for coming to this conclusion follow.

    The facts and the prosecution and defence cases

12. A brief overview of the facts and the respective prosecution and defence cases is as follows.

13. The respondent knew the deceased and his parents lived next door to her.  At about 6:40pm on Thursday, 11 July 2013 the respondent telephoned the deceased and shortly thereafter he went to her home.  He was the last person to see her alive.  On the morning of Friday, 12 July 2013, the deceased was found lying unclothed in the garden of her home at Whyalla.  The cause of death was a combination of blunt chest trauma and blunt head trauma, together with alcohol toxicity. 

14. Police officers attended at the respondent’s home on Sunday, 14 July 2013.  He initially told them that he had been at his parents’ house on the evening of Thursday 11 July 2013, that he had left at about 7:00pm and had gone to his home where he remained for the rest of the night.  When he was asked whether he knew the deceased and whether he had ever been in a relationship with her, he changed his initial story.  He stated that he had telephoned the deceased and asked her for sex; that she had declined but had told him that her husband was away; that he had decided to go to her home to see “how things went”; that he had gone there at about 7:00pm and asked to have sex with her and that she refused.  He further stated to police that she had then driven him to his home; he admits that this was a plain lie.

15. The prosecution case was that the accused and the deceased were together, naked in a spa bath in the deceased’s backyard, later in the evening of Thursday 11 July 2013; that the deceased rejected the respondent’s attempts to have sexual intercourse and that he had intercourse without her consent; that he killed her by various blows to the head and chest areas; and that he then departed leaving her dead in the backyard of her house.

16. The defence case was that the respondent did not intend to do the deceased any harm, that her death was accidental and that he was innocent of both murder and manslaughter.  The respondent gave evidence that he and the deceased each consumed a large quantity of alcohol; that they engaged in consensual intercourse in the spa bath; that the respondent was then massaging the deceased’s upper body with his foot and while doing so he told her that he wished to terminate their relationship; that she then bit his foot to which he reacted by instinctively kicking out with his leg; that the deceased hit her head on the edge of the spa bath and lost consciousness; that the respondent then attempted to remove her from the spa bath, in the course of which she fell out of the spa; that he then dragged her on to the lawn area and she again fell from his grip; that he then applied forceful cardiopulmonary resuscitation (CPR) but she did not respond; that he then left and walked to his home.

17. No prosecution witness gave evidence of observing what occurred between the respondent and the deceased in the time leading up to and after her death.  The prosecution theory of sexual intercourse without consent followed by murder relied upon circumstantial evidence, including inferences to be drawn from the appearance of the scene and the post-mortem examination.

    The Judge’s reasons generally

18. The present was a difficult and complex case involving potential verdicts of guilty of murder; not guilty of murder but guilty of manslaughter; and not guilty of either offence.  The Judge was required to engage in a lengthy examination of a large body of evidence involving detailed consideration of the credit and reliability of a number of witnesses (including the respondent who gave lengthy evidence on oath, denying both rape and unlawful homicide[6]) and the assessment of substantial expert medical evidence. 

    [6]    The Judge correctly directed himself in relation to this evidence at [196]: "In considering the accused’s evidence, I have had regard to his demeanour in the witness box, how his evidence compares with other evidence in the case which I consider to be reliable, the inherent likelihood of his account of the events of that evening and his reliability generally having regard to the different accounts he gave about the events of the evening.  I do not regard his failure to give an honest account to police as evidence of consciousness of guilt.  I accept that he may, in panic, have left the deceased lying in the backyard.  Nevertheless, his failure to be honest with the police when he was asked what had occurred is a factor to which I have had regard in assessing his evidence and his credibility.”

19. As to the respondent’s evidence and the defence case, the Judge positively accepted some aspects; found other aspects to be reasonable possibilities not disproven by the prosecution; and positively rejected still other aspects of the respondent’s evidence and defence case.

20. Instances of positive acceptance of the respondent’s evidence include:

    ·that there was an ongoing sexual relationship between the respondent and the deceased at the time of her death;

    ·that consensual sexual intercourse between the deceased and the respondent occurred shortly prior to her death;

    ·that both the deceased and the respondent were significantly intoxicated at the time of the death of the deceased; and

    ·that the deceased grabbed the respondent’s right foot and bit it hard and that this may have caused the respondent to kick out at the deceased.

21. An important example[7] of a possibility in favour of the respondent that the Judge found that he could not exclude was stated by his Honour as follows:

    [A]t least some of the deceased’s chest injuries were caused by the accused performing CPR.  The injuries to the chest required considerable force.  I cannot exclude the possibility that the accused applied significant force to the deceased’s chest when performing CPR.[8]

    [7]    This example relates to the important matter of causation considered in more detail below.

    [8] Judgment [208].

22. However, the Judge generally rejected the respondent’s evidence as to the events that followed the biting by the deceased (and the consequent kicking out by the respondent) including his evidence:

    ·that the kicking out by the respondent caused the deceased to become unconscious;

    ·that the deceased was dragged unconscious from the spa to the position where her body was later found;

    ·that all of the injuries to the chest and other parts of the deceased’s body were caused accidentally by the respondent attempting to remove the unconscious deceased from the spa and then applying CPR; and

    ·that the respondent did not seriously assault the deceased.

1. The above approach was, of course, completely in accordance with the usual instructions given to juries that the tribunal of fact has the right to accept all, part or none of the evidence of the various witnesses and to accept all, part or none of the theories and submissions of the respective parties.

   The Judge’s findings as to the respondent seriously assaulting the deceased 

2. The Judge positively rejected the prosecution allegation of rape but found that after consensual sexual intercourse had concluded the respondent did seriously and unlawfully assault the deceased (although he did not accept all aspects of the prosecution case in this regard).  Thus his Honour stated:

   [210]I do not accept the prosecution submission that the deceased rejected the accused’s sexual advances which resulted in him assaulting her.  How the altercation between them began is uncertain.  The disagreement may have been when the accused engaged in more vigorous intercourse than the deceased was prepared to engage.  The words, “Please do not hurt me” are likely to have been spoken during this sexual encounter.  The deceased may have become upset by something the accused said.  Whatever the reason, I am satisfied that the deceased bit the accused on the foot.  The injury to the accused’s foot and Dr James’ evidence supports a conclusion that the deceased had a firm grip on the accused’s foot and that the tearing injury was caused by him pulling his foot away.  The accused may have kicked out at the deceased.  I do not accept his evidence that she lost consciousness as a result of him kicking her.  The injuries suffered by the deceased were so extensive that the suggestion that they resulted in the manner described by the deceased is not credible.

   [211]Professor Byard observed a focused collection of injuries around the face and the head of the deceased.  There was bruising to the left side of her face extending over the line of the jaw and up to the hairline and behind the ear, bruising over the right cheek and right side of the forehead, a gash above the right eyebrow, a blackened right eye and fractured right eye socket.  Due to the confluent nature of much of the bruising, Professor Byard was only able to ascribe a minimum of five impacts to cause those injuries.  I accept his evidence.  I find that it would be very unlikely, if not impossible, for the bruising to the left cheek to have been caused by a single blow.  I accept his opinion that it was due to a number of bruises running together and was the type of injury that typically results from a person being kicked or punched.  I accept Professor Byard’s opinion that the location, symmetrical nature and focused collection of bruising to the face and head is more characteristic of an assault than an injury associated with a fall.  I am satisfied that the facial and head injuries suffered by the deceased were as a result of numerous blows of blunt force. 

   [212]I accept Professor Byard’s evidence that the injuries he observed were most likely to have resulted from an assault.  I am satisfied that the accused struck the deceased on numerous occasions causing injuries to her head, which substantially contributed to her death.

   [213]Professor Byard accepted that certain events could result in consequential injuries.  However the extent of the injuries are such that I am satisfied that they were not caused by the deceased slipping or falling on a number of occasions.  I conclude that the injuries to the chest are such that CPR alone was not the cause.  It is possible that some of the rib fractures were caused by CPR, however the fact that there were fractures both to the front and the rear of the rib cage leads me to conclude that force other than simply CPR caused those injuries.  I am satisfied that there was some application of force by kicking or stomping the deceased in the front or rear of the chest.

   [214]The extent of the bruising and other abrasions satisfies me that the deceased had been assaulted by a number of blows with a fist or that she had been kicked on a number of occasions.  In my view it stretches coincidence beyond belief that injuries such as those suffered by the deceased could have been as a result of her slipping or falling and sustaining further bruising when the accused attempted to remove her from the spa.

   [215]The extent of the deceased’s injuries to the face are such that I am satisfied that the accused assaulted her by hitting her with a clenched fist in the head and face.  The injuries to her ribs are such that at least some of the factures were caused by deliberate blows either from punches, kicks or stomps.

   [216]The accused’s evidence does not account for the nature and severity of the injuries to the deceased’s face and head.  I found his evidence unconvincing when he was being asked whether he observed any injuries to the deceased when she first entered the spa, after her slip from the steps, after he kicked-out at her or when they crashed against the side of the spa.  The deceased and the accused were sitting across from each other in a confined area for, on the accused’s evidence, around one hour before he brought up the topic of ending the relationship.  It is inconceivable that he would not have noticed any significant injuries to her face or head, had they been there at the time.  Similarly, if the deceased had sustained any serious injuries to the face or head when she slipped from the step, it is difficult to imagine that he would not have seen them when he was massaging her upper body with his feet.  I am satisfied that the injuries sustained to the face and head of the deceased were not caused by the events as described by the accused.

   [217]I reject the evidence of the accused that the deceased became unconscious as a result of a single blow to the head caused by him kicking-out at her when she bit his foot.  Having found that the injuries were caused by repeated blows inflicted by the accused and not by the series of events described by the accused, I consider it inherently implausible that, if the deceased had been rendered unconscious by the initial kick, the accused would have continued to attack the deceased in a manner which resulted in the extensive injuries she sustained to her face and head.  It follows, and I find, that the deceased did not die as a result of the accused kicking out at her face after she bit his foot.

   [218]I am satisfied that the injuries to the deceased’s face and head were caused by repeated blows inflicted by the accused.  I cannot be satisfied of the circumstances in which the assault occurred, whether it occurred in the spa only or whether it continued outside.  The position of the filter box and spa cushion as observed by the police after the deceased was found suggest that they had been dislodged during the altercation.  The exact circumstances of how that occurred are unclear.  I cannot be satisfied that the accused attacked the deceased by hitting her with the filter box.  The position in which those items were located and the dislodging of the spa cover are, however, indicative of a disturbance having occurred in the spa.

   [219]I am satisfied that the plastic chair was broken during the events of the evening.  I do not exclude as a possibility that the chair broke when the accused stood on it.  I cannot conclude that the deceased was attacked using any part of the chair as a weapon.  I accept the evidence of Professor Byard that he would have expected to see evidence of tram-like bruising on the body of the deceased if she had been hit with the chair.  However I am satisfied that the injury to the accused’s eye was the result of a piece of the chair entering the accused’s eye when the chair broke.  I accept Ms Tat’s evidence.  I am satisfied that the matter removed from the accused’s eye by Ms Tat, the optometrist, was plastic and that the injury had been sustained during the events of the evening.  I reject the accused’s explanation that he irritated his eye when brushing it with a sleeve of a jacket at the Left Hand Club.

   [220]The accused’s DNA was located in a blood-like stain on the right side of the spa.  The accused suffered an injury to his hand between the ring finger and middle knuckle.  The prosecution submit that it is open to me to conclude that the injury was a result of punching the deceased whilst in the spa.  I cannot exclude the possibility that the cut to the accused’s hand was the result of an injury he sustained earlier when dismantling the glass washer at the Left Hand Club.  I also cannot exclude the possibility that the blood-like staining on the right side of the spa was deposited there as a result of the wound on the accused’s hand opening or the scab being dissolved in the spa.  It follows that I draw no conclusion adverse to the accused from the injuries to his hands.

   The Judge’s verdict and sentence

3. On 17 December 2014, the Judge found the respondent not guilty of murder but guilty of the very serious offence of unlawful and dangerous act manslaughter on the basis that he had deliberately inflicted serious injuries upon the deceased, and that he had caused her death.  His Honour was not satisfied beyond reasonable doubt that the necessary specific intent to constitute murder rather than manslaughter had been proven.

4. Subsequently, on 10 April 2015, the Judge sentenced the respondent to a sentence of 15 years imprisonment with a non-parole period of 12 years.[9]

   [9]    Sentencing occurred after the Court had reserved Judgment on the present application.

   The prosecution application for permission to appeal against the verdict

5. The Director of Public Prosecutions (the Director) seeks permission to appeal against the acquittal of murder (the acquittal) pursuant to ss 352(1)(ab)(i) and 353(2a) Criminal Law Consolidation Act 1935 (the Act).  He proffers two (amended) grounds as follows:[10]

   In finding the respondent not guilty of murder, the Learned Trial Judge erred in his approach to the element of specific intent.  In particular, in coming to a conclusion about that element the Learned Trial Judge:

   (A)Erred in failing to consider the injuries to the chest of the deceased that he found were among the injuries that were a substantial cause of death and which he also found had been inflicted by the respondent deliberately and unlawfully.

   (B)     [Not pressed]

   (C)     [Not pressed]

   (D)Erred in failing to consider, or to consider adequately, the whole of the evidence relevant to the respondent’s intoxication.

   [10]   The respondent does not seek to appeal against the conviction of manslaughter.

6. Before considering this application, it is necessary to have regard to the correct approach to a prosecution application for permission to appeal against an acquittal by a Superior Court Judge sitting alone.

   The double jeopardy principles

7. An acquittal by a Judge of a superior court falls squarely within the central double jeopardy principles.  Older formulations expressed a rule of finality of acquittal by a superior court verdict[11] in terms of “a jury verdict” of acquittal because, until very recent times, a jury trial was the only form of trial in the superior courts.  As a matter of obvious chronology, the jury trial was at one time the sole means of resolution of contested criminal charges in England[12] and, for practical purposes, it is true to say that a jury verdict of acquittal on the merits was traditionally regarded as final.  Typical of early Australian formulations is the following passage from the joint judgment of Gavan Duffy and Rich JJ in R v Snow:[13]

   It is a well established rule of the common law in England, and, as we believe, in every political community existing under the British Crown, that, though new trials may in certain circumstances be ordered where a verdict has passed for the Crown, a verdict of “not guilty” given by a jury on a sufficient indictment in a purely criminal trial conducted by a competent Court is final.  … there has been no sustained attempt to interfere in any way with a verdict of “not guilty” in such cases, though the Courts showed some disposition to do so nearly three centuries ago in the “troubled times of the Commonwealth.”  First, out of respect for life when all felonies were capital, and, later, out of respect for character and reputation, the Courts resisted every attack on the inviolability of the verdict of “not guilty,” and that inviolability has remained part of the substantive law to the present day.

   [11]   As distinct from an acquittal in a court of summary jurisdiction or an acquittal entered by an intermediate court of appeal after a conviction at trial.  Both classes of case are discussed below.

   [12]   A short reference to the earlier forms of trial (ordeal, battle and compurgation or wager of law) may be found in R v Gee (2012) 113 SASR 372, 420.

   [13] (1915) 20 CLR 315, 363-364.

8. Indeed, a jury conviction on the facts was also final in England until the passage of the Criminal Appeal Act 1907 (UK) whereby a right to appeal against such a conviction was introduced in England following the occurrence of certain prominent miscarriages of justice.[14]  Common form legislation was enacted, initially by the English Parliament[15] and later by other Legislatures, which enabled persons to appeal against a jury conviction on various grounds including that “the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence”.[16]  At the same time, proper regard was had to the deeply entrenched double jeopardy principles with the result that initially no corresponding prosecution appeal against a jury acquittal was created.

   [14]   The calamitous case of Adolf Beck (who was misidentified in separate identification parades by some 11 women who had had relatively intimate dealings with the true offender) led to the establishment of the English Court of Criminal Appeal.  The case of Oscar Slater (another miscarriage of justice through misidentification) led to the establishment of the Scottish Court of Criminal Appeal.

   [15]   Section 4(1) Criminal Appeal Act 1907 (UK).

   [16] Now appearing in South Australian legislation at s 353(1) Criminal Law Consolidation Act 1935.

9. In Australia, the option of a new mode of trial, namely trial by a superior court Judge sitting alone as an alternative to trial by jury was introduced in South Australia in 1985; in New South Wales in 1991; in the Australian Capital Territory in 1993; in Western Australia in 1994; and in Queensland as recently as 2008. Trial by Judge alone is still not available in Victoria, Tasmania and the Northern Territory; nor is it available for Commonwealth offences wherever they are tried, since it has been held that the right contained in s 80 of the Constitution, that the ‘trial on indictment’ for any offence against any law of the Commonwealth shall be by jury, cannot be waived.[17]

   [17]   Brown v The Queen (1986) 160 CLR 171.

10. In Australia, the analysis of the Federal Court in Thompson v Mastertouch TV Service Pty Ltd,[18] (Mastertouch) is rightly regarded as the locus classicus for discussion of the application of the double jeopardy principles to an acquittal by a Judge of a superior court.[19]  The respondent in Mastertouch had been acquitted following a trial by a superior court Judge rather than a jury.[20]  He contended that the Federal Full Court had no jurisdiction to hear the purported appeal because the relevant provisions of the Federal Court of Australia Act 1976 should be read down having regard to an important common law right of a person acquitted in a superior court to be free of such further litigation.

    [18] (1978) 38 FLR 397.

    [19]   See for example, The Honourable Justice Michael Kirby, ‘Carroll, double jeopardy and international human rights law’ (2003) 27 Crim LJ 231.

    [20]   The statutory criminal offence was triable by a single Judge of the Federal Court.

11. Deane J (with whom Smithers and Riley JJ concurred) formulated the relevant right as an ancient common law right of a person who has been acquitted by a superior court after a trial on the merits of a criminal charge to be spared the renewed jeopardy of an appeal against that acquittal.[21] His Honour read down s 24(1), Federal Court of Australia Act 1976 (which was in very general terms) in the light of that common law right.  His Honour stated:[22]

    An appeal, as of right, from a judgment of acquittal pronounced by a superior court is not a recognized part of the appellate process in the administration of criminal law.  The existence of such an appeal is contrary to a fundamental principle of the common law. There is no relevant legislative precedent for the Crown or other prosecutor being given authority as of right to institute or maintain such an appeal. As has been mentioned, it is a well-established principle of statutory interpretation that a statute is not to be taken as effecting a fundamental alteration in the general law or abolishing or modifying fundamental common law rights unless it uses words that point clearly and unambiguously to that conclusion. Applying that principle of construction to the present case, I consider that the conclusion is unavoidable that the general words used in s 24(1)(a) and (b) to confer jurisdiction “to hear and determine appeals” do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended. (Emphasis added)

    [21] (1978) 38 FLR 397, 403.

    [22] (1978) 38 FLR 397, 412-413.

12. In the later decision of the High Court in Davern v Messel,[23] s 24(1), the Federal Court of Australia Act 1976 was again under consideration, this time in the context of a prosecution attempt to appeal to the Full Court of the Federal Court against a decision of a single Judge of the Northern Territory Supreme Court to set aside a conviction of the respondent by a Magistrate and to enter an acquittal.[24]  Gibbs CJ (with whom Dawson J concurred) decided that, in these different circumstances, Mastertouch was distinguishable and held that the Federal Court did have jurisdiction to hear an appeal against the setting aside of a conviction.[25]  However, his Honour approved the decision in Mastertouch and the statements of principle and approach therein.  His Honour stated:[26]

    The rule against double jeopardy is an application in the criminal law of the principle expressed in the maxim nemo debet bis vexari pro una et eadem causa: a person shall not be twice vexed for one and the same cause.  It is, as Blackstone pointed out, the foundation of the pleas of autrefois acquit and autrefois convict …

    The purpose of the rule is of course to ensure fairness to the accused.  It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused person on the same evidence, perhaps before what the prosecutor “considered to be a more perspicacious jury or tougher judge”: Reg v Humphrys …

    When the prosecution seeks to appeal from an acquittal, the rule against double jeopardy has an indirect application.  An appeal is a remedy given by statute; the scope of the appeal must be governed by the terms of the enactment creating it: Commissioner for Railways (NSW) v Cavanough.  The question whether an appeal lies from an acquittal therefore must be decided as a matter of statutory interpretation.  However it is a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed.  The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires that an acquittal be treated as final.  In Benson v Northern Ireland Road Transport Board (1942) AC 520, at p 526, the House of Lords accepted as correct a statement by Palles CB in R v Tyrone County Justices (1906) 40 Ir LT 181, at p 182, that it is an elementary principle that "an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court." …

    … I accordingly respectfully agree with the conclusion of Deane J in Thompson v Mastertouch TV Service Pty Ltd that the general words of s.24 do not affect the right of the subject to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction: see pp 550, 552, 560.  Room may remain for argument on the question when a hearing is not one on the merits, but that question raises no difficulty in the present case.

    [23] (1984) 155 CLR 21.

    [24]   This was, of course, the scenario that had been alluded to by Deane J in Mastertouch as potentially leading to a different result.

    [25] (1984) 155 CLR 21, 33; 40.

    [26] (1984) 155 CLR 21, 29, 30, 33.

1. Mason and Brennan JJ, in the course of a joint judgment which came to the same result as Gibbs CJ, observed:[27]

   In the result Australian, as well as English and Irish, authority supports the principle of interpretation stated in Tyrone which was endorsed in Benson and applied by the Federal Court in Mastertouch.  The main foundation for the principle as it has been expressed is the rule against double jeopardy, though the principle may also be based more generally on a notion of justice and fairness to the accused as the weaker party to criminal proceedings.  [Citations omitted]

   [27] (1984) 155 CLR 21, 55. Murphy J and Deane J in separate judgments dissented, being of the view that the Federal Court did not have jurisdiction to hear such an appeal.

2. Deane J dissented as to outcome of the appeal but, along with President Kirby, “I do not take his general statement about the rationale of the rule against double jeopardy to be in conflict with the reasoning of the other members of the Court”.[28]  Deane J said in Davern:[29]

   Any statement of the rationale of the common law rule against double jeopardy is incomplete, however, unless it also takes account of the fact that, at least in common law countries and apart from the exceptional case of a private prosecution, both the prosecutor and the court in a criminal case are essentially emanations of the same entity.  Regardless of whether it be seen or described in terms of the sovereign or the people, that entity is the State.  It is the State that establishes and maintains the judicial system.  It is the State that brings an accused person before that judicial system on a charge of an offence against the law of the State.  It is in the State’s favour that the overwhelming balance of power and resources will ordinarily lie.  If, in that context, a competent court in the State’s own system rules that the State charge should be dismissed and makes an order that the person against whom the State has brought proceedings is acquitted and discharged, there is plainly much to be said for the view that, as a matter of ordinary fairness, that person should be entitled to be released both from custody and jeopardy on that charge.  Put another way, the citizen who is told by a competent court of the State that the State’s proceedings against him are resolved in his favour should not awake on the morrow to be told he faces renewed jeopardy on that charge either by reason of the institution by the State of new proceedings against him or by reason of an appeal by the State against its own court’s decision.

   [28]   Per President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell (1988) 14 NSWLR 51, 56.

   [29] (1984) 155 CLR 21, 67-68.

   The derivation and nature of the double jeopardy principles

3. Modern analysis[30] confirms that the doctrine of finality of verdict following a jury trial did not arise by virtue of such finality being an essential element of a jury trial.  Rather, it arose from the double jeopardy principles which are inherent in the nature of the larger legal system of which the jury trial was, and remains, a part.

   [30]   For example: R v Kim (1993) 113 FLR 278; The Queen v JS (2007) 230 FLR 276.

4. In The Queen v JS[31] the respondent was tried by a jury on a charge against s 39 Crimes Act 1914 (Cth) and acquitted by direction of the Judge at the close of the prosecution case. The Commonwealth sought to appeal against the acquittal. One of the respondent’s contentions before the Court of Criminal Appeal was that s 80 of the Constitution of the Commonwealth (Cth) (which requires trials on indictment to be by jury), has the consequence that it is impermissible to enact legislation applicable to Commonwealth offences which qualifies the finality of an acquittal following a verdict of not guilty by a jury; this was submitted to be so because the finality of a verdict of acquittal is an essential characteristic of trial by jury within the meaning of s 80 with the consequence that authorities such as Cheatle v The Queen,[32] Brownlee v The Queen[33] and Ng v The Queen[34] are engaged.

   [31] (2007) 230 FLR 276.

   [32] (1993) 177 CLR 541 esp at 557-558.

   [33]   (2001) 207 CLR 278 esp at [5] and [21].

   [34]   (2003) 217 CLR 521 at [9].

5. Spigelman CJ rejected that contention, largely on the basis that the point had previously been decided against the respondent in the previous decision of R v Kim[35] where Green CJ had decided:

   … [A]lthough there are principles or presumptions which militate against construing statutes so that they confer a right of appeal against acquittals they do not derive their validity from any special rule relating to trial by jury but from other more general common law principles. …”   [Emphasis added]

   [35] (1993) 113 FLR 278.

6. In a separate judgment in The Queen v JS, Mason P reached the same conclusion.  His Honour posed the question thus:

   Accepting the fundamental nature of the common law principles, the real issue is nevertheless the proper characterisation of those finality principles as at 1900.  Were they an aspect or attribute of trial by jury?  Or were they aspects of different common law principles related to double jeopardy or the absence of any right of appeal at common law?

7. In rejecting the contention of the respondent, Mason P concluded:

   The reasoning of the High Court in R v Carroll(2002) 213 CLR 635 demonstrates that the doctrine of double jeopardy reflected in the pleas of autrefois convict and autrefois acquit are aspects of a wider principle precluding calling into question orders made upon the final determination of legal proceedings, especially determination of criminal proceedings by a verdict of acquittal: see per Gleeson CJ and Hayne J at [35], [48], per Gaudron and Gummow JJ at [91]-[93], per McHugh J at [137]-[138]. This extension of the autrefois rules does not, however, serve to relocate them within the sphere of s 80. On the contrary. The preclusion discussed in Carroll operated by reference to the final outcome of the criminal process (acquittal), not the mode whereby it came about.  The accused in Carroll had been convicted by a jury but he was acquitted on appeal to the Court of Criminal Appeal of Queensland.  …              [Emphasis added]

8. As to the meaning of double jeopardy,[36] in Pearce v The Queen, McHugh, Hayne and Callinan JJ stated in a joint judgment:[37]

   [9]The expression “double jeopardy” is not always used with a single meaning.  Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”.  Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

   [10]If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States:

   The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

   That underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy. …   (Emphasis added)

   [36]   The literature is extensive.  Works with an Australian focus include: Dr Chris Corns, ‘Retrial of acquitted persons: Time for reform of the double jeopardy rule?’ (2003) 27 Crim LJ 80; Cameron Ford, ‘Current issue: Content of “double jeopardy” in crown appeals considered by High Court’ (2012) 2 NTLJ 176; Matthew Goode, ‘A proposal to codify the criminal law dealing with double jeopardy and related issues’ (2007) 31 Crim LJ 165; The Hon Justice Michael Kirby, ‘Carroll, double jeopardy and international human rights law’ (2003) 27 Crim LJ 231; Marilyn McMahon, ‘Retrials of persons acquitted of indictable offences in England and Australia: Exceptions to the rule against double jeopardy’ (2014) 38 Crim LJ 159; The Hon Justice Dean Mildren, ‘Crown appeals and double jeopardy’ (2011) 2 NTLJ 3; Charles Parkinson, ‘Double jeopardy reform: The new evidence exception for acquittals’ (2003) 26(3) UNSWLJ 603; Jane Stapleton, ‘Civil prosecutions – Part 1: Double jeopardy and abuse of process’ (1999) 7 TLJ 244.

   [37] (1998) 194 CLR 610, 614.

9. In similar vein Gummow J stated:[38]

   [66]… The submissions for the appellant rather assumed that in this country “double jeopardy” was an independent doctrine of avoidance which of itself would found a stay application.  That is not the position.  Somewhat like notions of unjust enrichment, double jeopardy is a “concept” rather than “a definitive legal principle according to its own terms”.

   [38] (1998) 194 CLR 610, 628-629.

10. And in R v Carroll, Gleeson CJ and Hayne J in a joint judgment stated:[39]

    [21]A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime.  Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious.  Blackstone’s precept “that it is better that ten guilty persons escape, than that one innocent suffer” may find its roots in these considerations.

    [22]Many aspects of the rules which are lumped together under the title “double jeopardy” find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts.  Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression.  Further, finality is an important aspect of any system of justice.  As the New Zealand Law Commission said in a recent report dealing with the possibility of statutory relaxation of the rule against double jeopardy in the case of acquittals procured by perjury or perversion of the course of justice, the need to secure a conclusion of disputes concerning status is widely recognised, and the status conferred by acquittal is important.

    [39] (2002) 213 CLR 635, 643.

11. As to the humanitarian aspect of the rule, the exposition of President Kirby (as he then was) in the New South Wales Court of Appeal decision of Cooke v Purcell[40] should not be forgotten – a portion of it is reproduced above at paragraph [7].

    [40] (1988) 14 NSWLR 51.

    Two other classes of acquittals

12. The central case of a trial in a superior court may be distinguished to some extent from two other classes of acquittals: acquittals by a court of summary jurisdiction and judgments of acquittal entered by an appellate court after a jury (or lower court) originally convicted.  However, the double jeopardy principles remain highly relevant to both of these classes.

    Prosecution appeals against acquittals by Justices and Magistrates

13. Long before the passage of the Criminal Appeal Act 1907, the English Parliament had commenced to enact summary offences of a generally less serious nature than the traditional common law felonies and misdemeanours.  These summary offences were dealt with by courts of summary jurisdiction initially presided over by unqualified justices of the peace[41] with the more serious offences continuing to be adjudicated by jury trials held in the superior courts (presently in South Australia, the District and Supreme Courts).  For many years the two systems of summary trial for the less serious offences and trial by jury for the more serious offences ran in parallel.

    [41]   It is only much more recently that legally qualified magistrates have replaced justices of the peace in almost all of the work of the Magistrates Courts. 

14. Legislation providing for appeals to a State Supreme Court against convictions and acquittals by courts of summary jurisdiction (originally administered by justices of the peace rather than Magistrates) has been in place for many years.  A review of the literature confirms that Dr Chris Corns is correct in his view that:[42]

    The right of the prosecution to appeal against the decision of a magistrate to dismiss charges is probably an historical reflection of the higher courts' concern with the validity of decisions of justices of the peace, who have not been required to possess any formal legal qualifications.

    [42]   Dr Chris Corns, ‘Retrial of acquitted persons: Time for reform of the double jeopardy rule?’ (2003) 27 Crim LJ 80, fn 59.

15. Of course there is a substantial distinction between the interpretation of legislation so as to demonstrate that a right to appeal is conferred on the prosecution (on the one hand) and the correct approach of the courts to the exercise of that right (on the other hand).  It is well established in South Australia that this Court will have close regard to the double jeopardy principles and will exercise appellate restraint in relation to prosecution appeals against acquittals by trained Magistrates.  This is particularly so where the acquittal has proceeded from a lack of satisfaction by a Magistrate of guilt on the facts as distinct from a mistaken view of the law.  Thus in Thorogood v Warren, Zelling J stated:[43]

    The fact is that appellate courts have rightly been very reluctant to interfere with a verdict of acquittal based upon a reasonable doubt.  A finding of reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance, and neither of those things are readily susceptible to review by an appeal court.

    In the instant case I can see reasons which might have engendered a reasonable doubt in the mind of the Special Magistrate.  … All or any of those matters may well have been in the mind of the learned Special Magistrate, and some of them indeed certainly were, by reason of his citations from the evidence, which are voluminous and which I will not restate here.

    It may be that some of this hesitation by appellate courts derives from the ingrained view of the law that a right of appeal against an acquittal is not presumed, except when given expressly in plain words.  The history of that can be seen in the judgment of a Divisional Court in The King v The Keepers of the Peace and Justices for the County of London.  There is no doubt that there is such a right of appeal here.  Something of that dislike of an appeal from an acquittal has perhaps coloured the attitude of appeal courts in their treatment of appeals by prosecutors, especially where the acquittal below was on the basis of reasonable doubt.  However that may be, I am of the opinion that the view of the law is salutary, and that an acquittal based upon a reasonable doubt should not be interfered with except in a very unusual case, of which this is not one.

    [43] (1979) 20 SASR 156, 159.

16. In Weinel v Rojas, Olsson J stated:[44]

    It must firmly be borne in mind that prosecution appeals against dismissal are to be approached on a basis different from that applicable to other appeals, for several reasons.

    The first is that, as was pointed out by Zelling J in Thorogood v Warren (1979) 20 SASR 156 at 159, appellate courts have always been reluctant to interfere with a verdict of acquittal based upon a reasonable doubt. As he there emphasised the finding of a reasonable doubt owes much to the atmosphere of the trial and the appraisal of the witnesses by the court at first instance - neither of which are readily susceptible to review by an appeal court. In my view this problem is doubly compounded when an important area of consideration is the resolution of conflicting views of expert witnesses.

    Secondly, as was pointed out by Dixon J (as he then was) in The King v Wilkes [1948] HCA 22; (1948) 77 CLR 511 at 516, the allowance of an appeal against an acquittal has always been regarded as the exercise of an exceptional discretionary power. This is essentially because, as in the case of prosecution appeals against sentence, what is involved is the undesirable placing of an alleged offender in a situation of double jeopardy. An appeal should only be allowed in the clearest and most compelling circumstances, for the purpose of correcting manifest error. As I expressed the proposition in Semple v Williams (1990) 156 LSJS 40, an appellate court will be prepared to set aside an order of dismissal based upon the impact of the evidence upon the fact finder and remit a matter for retrial only where it appears that the order of dismissal sought to be impugned was plainly wrong on any reasonable interpretation of the recorded evidence and (where relevant) the inferences which patently arise from it.

    [44]   (Unreported, Supreme Court of South Australia, Olsson J, 10 June 1994).  Olsson J expressed similar views in Semple v Williams (1990) 156 LSJS 40 and in DPP (Commonwealth) v Sharon Lee Brown (1994) 72 A Crim R 527.

17. In SA Police v Murphy, Debelle J said:[45]

    Although s 42 of the Magistrates Act provides a right of appeal to the prosecution from an acquittal by a magistrate, appellant courts are reluctant to interfere with a verdict of acquittal which is based upon a reasonable doubt ...  When there is an error of law the court might be the more willing to interfere.  When there is an appeal against an acquittal and that acquittal was based upon a reasonable doubt, the appellant court will not interfere except in a very unusual case.  Plainly, where there is an appeal which involves a question of fact and the issues in the appeal depend on the view taken of conflicting testimony or an impression gained from an observation of witnesses, the appellant tribunal is at a distinct disadvantage.

    [45]   (Unreported, Supreme Court of South Australia, Debelle J, 9 January 1996).  Debelle J expressed similar views in Owen v Zakelj (Unreported, Supreme Court of South Australia, Debelle J, 17 June 1991); Police v Carradine (1996) 66 SASR 584; and Police v Lloyd (1998) SASR 271.

18. In Police v W, BC, White J stated:[46]

    [12]The approach of this Court generally to appeals by the prosecution against the dismissal of a charge based on a finding of reasonable doubt is well established.  This Court is reluctant to interfere with a verdict of acquittal based upon such a finding.  There are two considerations which cause this Court to adopt that approach.  The first is that a finding of reasonable doubt often rests on the magistrate’s appraisal of the witnesses.  The second is that a prosecution appeal places the respondent in a situation of double jeopardy.  Where there is an error of law, the court may be more willing to interfere.

    [46] [2006] SASC 105. White J expressed similar views in Police v Melisi [2010] SASC 21.

19. Similar statements have been made by other Justices of this Court.  Examples include (in chronological order): Young v Gilmore (Prior J);[47] Police v Cadd (Lander J);[48] Royal Society For The Prevention Of Cruelty To Animals (SA) Inc v O’Loughlan (David J),[49] Ferguson v Reid (Sulan J),[50] Police v Koutlakis (Vanstone J),[51] Police v Jachmann (Layton J),[52] and Police v Smith (Peek J).[53]

    [47]   (Unreported, Supreme Court of South Australia, Prior J, 20 December 1991).

    [48] (1997) 69 SASR 150, 191-192.

    [49] [2007] SASC 113.

    [50] [2007] SASC 445.

    [51] [2008] SASC 194. See also Police v Eiffe (2007) 98 SASR 79 (Vanstone J).

    [52] [2009] SASC 392.

    [53] [2012] SASC 114.

20. While there is no requirement for permission to appeal in such cases, it is obvious that a number of appeals against acquittals by Magistrates which have been dismissed would have been instead dealt with by refusal of permission to appeal if there were such a requirement.

    Prosecution appeals against a judgment of acquittal by an appellate court following an original trial court conviction

1. However, the Judge also correctly appreciated that there was an important distinction between the head injuries and the chest injuries.  In relation to the chest injuries, the Judge found that he could not reject as reasonable possibilities that the applicant had applied forceful CPR to the chest of the deceased over a substantial period in an effort to save her life, and that the CPR had caused at least some of the chest injuries which had contributed to death (to be referred to as the CPR factor).  Although the Judge held that the CPR factor did not constitute a novus actus interveniens, it did present the problem that once it was fully taken into account, it was not possible to find beyond reasonable doubt that the chest injuries which were sufficiently serious to be a ‘substantial and operating cause of death’ were deliberately caused by the respondent as distinct from being accidentally caused by the respondent while applying CPR.

2. The Judge was clearly correct in his directions that it was necessary to establish concurrency of intent and the relevant causative action by the accused.  Thus in Meyers v The Queen, the High Court stated:[98]

   An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder.  The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt.  Act and intent must coincide.  If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

   [98] (1997) 71 ALJR 1488 (Brennan CJ, Toohey, Gaudron, Gummow and Kirby JJ).

3. This statement closely accords with the earlier statement of Brennan J in Royall v The Queen (which was cited by the trial Judge here):[99]

   In most cases of alleged murder, a precise identification of the act which causes death is attempted in order to furnish a foundation for the inference of the mental state with which that act was done.  But where the accused has engaged in a course of violent conduct after which the victim does something that directly causes his or her death, it is not essential in point of law to identify which act or series of acts in the course of that conduct caused the victim to take the final fatal step provided the jury be satisfied on the whole of the evidence that some or all of those acts caused the death and was accompanied by one of the mental states prescribed by s 18(1)(a).

   [99] (1990) 172 CLR 378, 404-405.

4. The Judge’s above approach to causation was not challenged by the Director who accepted that it was necessary to establish that the required specific intent was present concurrently with the infliction of particular causative injuries and that, for the reasons explained above, the head injuries rather than the chest injuries could logically be relied upon.

   Paragraphs [223] and [225] of the judgment

5. At paragraph [223] the Judge stated: “I must consider whether the evidence satisfies me that at the time the accused inflicted the injuries to the deceased’s face and head that he intended to kill or to do grievous bodily harm.”  The applicant correctly conceded, for the reasons stated above, that this passage was not in itself indicative of error since it is to be understood in the light of the matters concerning causation explained above. 

6. As to paragraph [225] of the judgment, I disagree with the applicant’s submission (set out above) that the Judge’s words “The injuries” must have been exclusively a reference to the injuries to the head and face.  I consider that an examination of the structure of the judgment and the context of relevant passages demonstrates that no such inference can safely be drawn.  My reasons follow.

   The structure of the judgment 

7. The judgment as a whole demonstrates that the Judge had regard to both the correct approach to the derivation of mental intent from circumstantial evidence generally and to the significance of the injuries beyond the head injuries in the context of voluntariness, intention and specific intent for murder.  The general structure of the Judge’s reasons was as follows.

   ·paragraphs 1-25: general directions

   ·paragraphs 26-126: the prosecution evidence

   ·paragraphs 127-156: the evidence of, and called by, the respondent

   ·paragraphs 157-178: the prosecution submissions

   ·paragraphs 179-195: the defence submissions

   ·paragraphs 196-221: findings – the respondent’s evidence

   ·paragraphs 222-225: intoxication

   ·paragraphs 226-231: causation

   ·paragraphs 232-234: conclusions in relation to the charge of murder

   ·paragraphs 235-244: manslaughter

8. During the course of the judgment, the Judge correctly directed:

   [6]… that all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an hypothesis consistent with innocence reasonably open on the evidence.

   …

   [179] … I accept that the correct approach is to consider the evidence, make factual findings and draw inferences or conclusions from the whole of the evidence.  That is the approach which I have taken.

   …

   [203]… I am required to consider all the evidence to determine whether I am satisfied beyond reasonable doubt that the crime charged or any other crime has been committed.

9. As to the Judge’s directions in the immediate context of the passage at [225], it is to be noted that the preceding paragraphs [223] and [224] include extracts from the decisions of this Court in R v Wingfield[100] and R v Gardiner[101] which clearly deal with the process of inferring specific intent from the whole of the evidence in the case.[102]  Further, in the first half of paragraph [225], the Judge speaks in general terms which are not limited to the head injuries: “when he assaulted the deceased”; “the extent of her injuries support the conclusion that she suffered a number of forceful blows”; “the accused must have forcefully hit her on a number of occasions”.

   [100] (1994) 176 LSJS 14.

   [101] [2013] SASCFC 53.

   [102] Paragraphs [223] and [224] are reproduced above.

10. As far as paragraphs [223] and [225] are concerned, there is only one direct reference to the injuries to the “face and head”.  It occurs in the first sentence of paragraph [223] as the means of nominating the injuries that caused or contributed to death, ultimately relied on by his Honour, and therefore the point in time when the relevant intention is to be ascertained.  Thereafter, throughout paragraphs [223] and [225] his Honour only refers to the deceased’s injuries in more general terms.  In the very next sentence of paragraph [223] the Judge speaks of the appellant’s intention as being inferred from “the nature of the injuries inflicted …”.

11. When considered in the context of his Honour’s analysis as a whole, this choice of more general language – “the nature of the injuries inflicted” – is not to be read as picking up only the “face and head” injuries identified in the immediately preceding sentence.  To the contrary, the Judge has expressly moved away from the particular to the general in these opening two sentences of paragraph [223] because he has moved from the causation question to the intention question.

12. It is true that his Honour has made his critical finding as to specific intent in the context of his discussion of intoxication and before his Honour further discusses his conclusions concerning causation.  Nevertheless, the judgment should be read as a whole and paragraphs [223] – [225] should be understood after bearing in mind that his Honour categorised the various injuries suffered only for the purpose of identifying those that could safely be relied on as having been intentionally caused and as having contributed to death.  In addition, his Honour had clearly directed himself as to the correct approach to a circumstantial evidence case, that is, to make factual findings and draw inferences or conclusions from the whole of the evidence.[103]

    [103] For example at paragraphs [179] and [203] and cf; [6].

    Paragraph [233] of the judgment

13. Turning to the prosecution reliance on paragraph [233], the matter of most importance is the fact that the reasoning process concerning whether the prosecution had established the specific intent required for the crime of murder had in fact already been completed by the end of paragraph [225]. To repeat, in the final two sentences of that paragraph his Honour had stated:

    However, I cannot be satisfied that in his intoxicated state he intended to kill or do her grievous bodily harm.  The injuries could well have been inflicted in an intoxicated state without the necessary comprehension that a sober person would have when inflicting such severe blows.

14. This statement was determinative of an acquittal of murder since his Honour here positively found that an essential element for the crime of murder had not been established.

15. Immediately after paragraph [225], his Honour turned first to the matter of causation (paragraphs [226 – 231]) and later to the matter of manslaughter (paragraphs [235 – 244]).  It was of course necessary to establish that causation was satisfied in order to prove either the offence of murder or the alternative offence of manslaughter.  Thus, after the Judge found beyond reasonable doubt at paragraphs [226 – 231] that causation was established, his Honour was equipped to proceed to consider the alternative verdict of manslaughter.

16. However, before commencing consideration of manslaughter at paragraph [236], it was appropriate for the Judge to first deliver his formal verdict of acquittal of murder at paragraph [234].[104]  As a prelude his Honour states, in paragraphs [232] – [233], his bare conclusions with respect to the elements of the offence of murder, previously arrived at.  Included is his Honour’s conclusion, previously reached at paragraph [225], concerning the lack of specific intent.  In other words, the Judge confirms by way of a summary in short form his finding that all elements of murder but for the requirement of specific intent were present.  It does not constitute a pattern of continuing reasoning from which the error contended for by the applicant can be inferred. 

    [104] The final paragraph of the judgment at paragraph [244] simply states “Accordingly, I find the accused guilty of manslaughter”. It is to be noted that his Honour did not later reiterate the acquittal of murder which he had previously pronounced at paragraph [234].

17. In stating his conclusion (but not his reasons) as to specific intent in paragraph [233], the Judge’s use of the word “based” – “I do not draw an inference that the accused intended to kill or do grievous bodily harm based on the injuries to the deceased’s face and head” – was perhaps unfortunate.  However, I cannot accept the applicant’s submission that it suggests a fundamental error.  Such would be quite inconsistent with the Judge’s analysis and reasoning as a whole, including the passages central to this issue at paragraphs [223]-[225] as analysed earlier.  The use of this language was, at worst, an error of expression but not of reasoning.

18. For all of the above reasons, it is not possible to infer that the Judge did, as the applicant contends, “ignore completely other injuries caused unlawfully during the course of the same incident in reaching a view as to what the intent was when the fatal injuries were inflicted.”

    Consideration of proposed ground (D) of appeal

19. The Director foreshadowed at the outset of the hearing of the application that he placed considerably less emphasis on proposed ground (D) of appeal than on proposed ground (A).  He also conceded that the Judge had referred to the relevant legal principles concerning the bearing of intoxication upon the matter of specific intent and that he did not challenge the correctness of those principles or of the factual findings the Judge made in relation to the matter of intoxication (except as to his ultimate conclusion as to specific intent).  He further conceded that the Judge had made a finding that the respondent had been grossly intoxicated and that that finding was open on the evidence.  All of these concessions were correctly made.

20. The Judge made the following findings as to the respondent’s intoxication and the matter of specific intent:

    [206]I conclude that the accused also consumed a significant quantity of alcohol on the night of the deceased’s death.  His evidence was that he consumed eight bottles of beer and two whiskeys prior to going to the deceased’s home.  He consumed red wine whilst the deceased was preparing dog food and later whilst in the spa.  The two plastic wine glasses located at the scene support the conclusion that the accused and the deceased were drinking whilst in the spa.

    …

    [222]I am satisfied that both the deceased and the accused had consumed a significant quantity of alcohol. Defence counsel do not submit that the accused was so intoxicated that he was incapable of forming the intent to cause grievous bodily harm or kill the deceased. In my view, this concession is properly made and I so conclude. I have considered the requirements of s 268 of the Criminal Law Consolidation Act 1935 (SA). I conclude that the accused was not so intoxicated as to be incapable of forming a specific intention to kill or do grievous bodily harm. The accused gave a rational account of the events on that day and night. The accused does not suggest that he was intoxicated to such a degree that would satisfy the requirements of s 268. The accused’s intoxication is nonetheless important in considering whether the accused intended to kill or do grievous bodily harm to the deceased at the time of the assault.

    …

    [225]I am satisfied that the accused was significantly intoxicated when he assaulted the deceased.  The extent of her injuries support the conclusion that she suffered a number of forceful blows.  I conclude that the accused must have forcefully hit her on a number of occasions.  I conclude that his conduct was deliberate.  However, I cannot be satisfied that in his intoxicated state he intended to kill or do her grievous bodily harm.  The injuries could well have been inflicted in an intoxicated state without the necessary comprehension that a sober person would have when inflicting such severe blows.

21. There is a marked difference in the phraseology employed in proposed grounds of appeal (A) and (D).  Proposed ground (A) pleads “erred in failing to consider” a specific matter (namely the “chest injuries”) whereas proposed ground (D) pleads “erred in failing to consider or to consider adequately” the “whole of the evidence”.  The Director confirmed on the hearing of the application that the difference was intentional.

22. As noted above, the argument of the applicant as to proposed ground (A) was that the whole of the judgment clearly establishes that, in the context of considering the specific intent element of murder, the Judge positively restricted his analysis of the deceased's injuries to the head injuries and erroneously decided to take no account of the other injuries over and above those possibly caused by CPR.

23. However, the argument of the applicant in relation to proposed ground (D) is much more diffuse.  It is essentially that, in the context of consideration of the required specific intent for murder, the Judge did not sufficiently refer to all of the relevant evidence and did not refer to his Honour’s own findings as to the respondent’s state of mind made in the different context of the requisite intent for unlawful and dangerous act manslaughter.  The applicant particularly relied upon paragraph [237] of the judgment where his Honour stated (in the context of his consideration of the offence of manslaughter):

    … I am satisfied that the accused, albeit affected by alcohol, acted deliberately and intentionally when he struck the deceased.  The accused had sufficient presence of mind to attempt CPR when he realised that the deceased was severely injured and did not appear to be breathing.  He was able to apprehend the seriousness of the situation and the seriousness of his position to get dressed, leave the scene and walk to his house.

24. As I understand it, the applicant submits that since the Judge found that the state of the respondent’s intoxication did not prevent him from forming an intention to strike the deceased, and did not prevent him from realising that the deceased was severely injured, and did not prevent him from realising that the deceased appeared to be breathing, his Honour should have expressly referred to such findings when considering whether the required specific intent for murder was established.

25. The argument for the applicant really distilled to the proposition that his Honour may have failed to take such considerations into account when considering whether the required specific intent for murder was established and that, if he had taken them into account, he would/may have convicted of murder rather than manslaughter.  It is said that the verdict should therefore be set aside and a new trial on the charge of murder be ordered.   

26. The applicant accepts that it was open to the Judge to not be satisfied beyond reasonable doubt that the specific intent for murder was proven and at the same time to be satisfied that the required intent for the very serious offence of unlawful and dangerous act manslaughter was present.

27. As statements such as those extracted from Wingfield and Gardiner above demonstrate, the task of the tribunal of fact in deciding whether the specific intent required for the crime of murder is proven beyond reasonable doubt may often be a very difficult one.  Cases involving violent arguments between sexual partners, against a background of gross intoxication, may present particular difficulties.

28. In the present case, the Judge clearly delineated his obligation to make findings and decisions on the basis of the whole of the evidence and correctly directed as to the different states of intention required to establish murder and unlawful and dangerous act manslaughter respectively.  His Honour addressed the evidence in a careful and diligent way.  Whether other Judges, or jurors, might have come to the same, or a different decision, either more or less favourable to the respondent, is none to the point; it was open on the evidence for the Judge not to be satisfied that the required specific intent for murder was established and at the same time to convict of unlawful and dangerous act manslaughter.

    Disposition of the application

29. I consider that the proposed appeal has no reasonable prospect of success.  For all of the above reasons, I would dismiss the application for permission to appeal.

30. NICHOLSON J.   I agree, for the reasons given by Peek J, that the proposed appeal has no reasonable prospect of success.  For this reason, and independently of any consideration of double jeopardy principles, the application for permission to appeal should be dismissed.

31. I agree that section 352(1)(ab) pursuant to which the Crown may appeal with permission against an acquittal, is to be construed and considered against the background of the extant law dealing with the principles of double jeopardy. I am grateful to have had the advantage of his Honour’s detailed exposition of that law.